Chief Political Correspondent for The Sydney Morning Herald

The Gillard government is rebutting cigarette companies' claims that plain packaging undermines their intellectual property saying "what an owner gains by registration of a trademark is... no more than the a monopoly right to exclude others from using the mark without the owner's authority." Photo: Reuters

REGISTERING a trademark gives the owner the right to exclude others from using it, but not the guaranteed future right to use it themselves, the federal government argues in its submission on the landmark plain packaging High Court case, lodged last night.

In world-first legislation, the Gillard government is requiring that all cigarette packaging be drab green, with graphic health warnings.

Cigarette companies, led by British American Tobacco Australia, are challenging the constitutional validity of the legislation, on the grounds that it acquires their intellectual property and trademarks without compensation.

The government's case says this claim is not sustainable, because ''what an owner gains by registration of a trademark is … no more than a monopoly right to exclude others from using the mark without the owner's authority''.

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''None of the statutory rights tobacco companies claim will be taken from them … involve any positive right to use, free from other legal restrictions … The imposition of new legal restrictions takes nothing away from the rights granted. No pre-existing right of property has been diminished. No property has been taken,'' the federal submission states.

Tobacco companies are fighting the laws through every possible means because they are regarded as an international test case. Anti-tobacco advocates believe that if the laws are upheld, they will be copied in other countries.

In its submission the government also contends that British American Tobacco fails to understand the gravity of the harm caused by smoking and that tobacco companies pay close attention to packaging precisely because it has a powerful psychological effect on smokers.

It argues the companies pay ''minute attention'' to every aspect of the packet, for example using colours such as pink, purple, white and yellow (conveying qualities of freshness, femininity, cleanliness, purity and health) as well as slimmer packs, to appeal to young women.

And it says the companies often use lighter colours because they are perceived by smokers to present a lower health risk.

"The Commonwealth simply does not accept the constitutional claims made by big tobacco," the Attorney-General, Nicola Roxon, said yesterday.

"The Commonwealth will vigorously defend the validity of the plain packaging laws and rejects big tobacco's claims that the measures are unconstitutional.

"Plain packaging of tobacco products is a legitimate measure designed to achieve a fundamental objective - the protection of public health."

In a preliminary hearing, tobacco companies told the High Court they ''denied the content'' of documents lodged by the federal government making the case that smoking causes lung cancer.

The companies sought to block ''barrow loads'' of documents setting out evidence that smoking causes cancer on the basis that they were not relevant to the constitutional point being argued. Philip Morris has also initiated a challenge against the plain packaging regime under trade law.